Memorandum from the Rt Hon. The Lord Goldsmith
QC, Attorney General
When the Attorney General decides to consent to
or refuse a prosecution under Part III of the Public Order Act
1986 how are any ECHR rights taken into account? If so, which
ones and how is it done?
The Convention right most likely to be engaged
in potential prosecutions for offences contrary to Part III of
the Public Order Act 1986 is the right to freedom of expression
guaranteed by Article 10.
Article 10 is a qualified right. This means
that the right provided for in Article 10.1 is not absolute, but
may legitimately be subject to restrictions so long as they are
prescribed by law and are necessary in a democratic society in
the interests of national security, territoriality or public safety,
for the prevention of disorder of crime, for the protection of
health or morals and so on.
Where a criminal offence is created by statute,
as is the case with the Part III offences, Parliament determines
the scope of the conduct that the offence will prohibit. This
involves an assessment as to whether the restriction of the right
to freedom of expression imposed by the offence is justified.
The scope of the offence therefore represents Parliament's definition
of the conduct that is prohibited by the offence, notwithstanding
any restriction on a Convention right that this might involve.
That is the starting point.
The second point to make is that the Human Rights
Act 1998 specifically preserves the sovereignty of Parliament.
So a law remains in force even if a Court declares it to be incompatible
with the Convention. The Courts recognise that Parliament must
be accorded a discretionary area of judgment.
Moving on to the consideration of prosecutions,
if the conduct in question falls short of being an offence as
that offence is defined in the statute, there is no need to consider
any Convention points. There is no question of any prosecution
if the individual has acted within the law or if there is insufficient
evidence that he has contravened the law.
Where there is sufficient evidence that an individual
has committed one of the relevant offences, the facts and circumstances
of the individual case may give rise to Convention considerations.
The Attorney General is of course bound to apply the principles
of the European Convention on Human Rights in accordance with
the Human Rights Act 1998. Equally, even where there is sufficient
evidence to justify a prosecution he retains the discretion not
to prosecute where he assesses that a prosecution is not needed
in the public interest.
In practice, in the cases I have considered
where there was sufficient evidence to justify a prosecution the
conduct was such that it was clear that a prosecution was needed
in the public interest, and that there was no compelling Convention
argument to the contrary.
If Clause 2 of the Religious Offences Bill (HL
Bill 39) were enacted how would the Attorney General approach
ECHR Article 10? The draft guidance issued at the time the Anti-terrorism,
Crime and Security Bill was being debated gives some idea, in
paragraphs 1.2 and 5.12, but:
(a) Please elaborate on the "high threshold
(b) Is the Attorney General's consent the
right or the only way to deal with the Article 10.2 issue?
(c) Would the Attorney General give reasons
for consent or refusal?
A number of alarmist assertions about the range
of apparently innocent conduct which it was claimed might become
a crime if the proposed offence became law, demonstrated to me
that many commentators did not fully understand the effect of
the clauses creating the proposed offence, and some were perhaps
unfamiliar with aspects of the prosecution process.
So as to avoid the possibility of misunderstandings
creeping into the debate on these clauses that was to take place
in the House of Lords on 13 December, I took the exceptional step
of drafting a document which aimed to explain in straightforward
language the conduct that the new offence intended to criminalise,
by reference to the draft clauses themselves. The guidance did
not purport to limit the effect of the proposed law in any wayfor
example the guidance does not purport to define terms such as
"hatred" which are not defined by the law itselfbut
to assist a wider understanding of the effect of the proposed
law. I should add that because the clauses did not pass into law
the guidance has never taken effect.
It is helpful to read the guidance as a whole
rather than isolating sections of it. The reference to "high
threshold tests" in paragraph 5.12 of the guidance, for example,
is a reference to the words used in the draft clauses to define
the conduct that would amount to an offence of incitement to religious
hatred. Those key words and concepts are highlighted in the preceding
paragraphs 5.3 to 5.11.
As regards the approach to Article 10 and Convention
rights, the Committee has seen paragraph 1.2 of the draft guidance.
The police, the Crown Prosecution Service and the Attorney General,
as public authorities, are bound to apply the principles of the
European Convention on Human Rights in accordance with the Human
Rights Act 1998. As the assessment of the impact of the Convention
can only fully take place against the backdrop of the particular
facts of the case, I cannot add to what I have already said on
The requirement for the Attorney General's consent
to a prosecution, which was included in the clauses which appeared
in the Anti-terrorism, Crime and Security Bill, is consistent
with the same requirement for offences of incitement to racial
hatred. I cannot comment on the policy underlying the drafting
of Lord Avebury's Bill.
Where the Attorney General refuses his consent
to a prosecution he informs the Crown Prosecution Service of the
reasons. If asked by others to explain his decisions, such as
Members of Parliament, the Attorney General's policy is to be
as helpful as possible.
Some of our Witnesses have argued the need for
an annual report on the Attorney-General's decisions in such cases.
Is this feasible and/or desirable?
I have not heard the arguments put forward in
favour of such a report, and I do not know precisely what those
in favour of such a report may have in mind. I would assume that
the proponents would like regular systematic information. In practical
terms, the feasibility of such a report would depend on the detail
required. I see no great difficulty in my providing some statistical
information about consents granted and refused, such as may be
requested via a Parliamentary question. But I would strongly resist
any attempt to create a statutory duty to report annually.
I am not convinced in any event that information
about consents alone would achieve any useful purpose. Raw data
in isolation can be misleading. The numbers alone don't really
provide a picture of how the criminal justice system overall is
responding to this type of offence. Some conduct of this kind
may be more effectively prosecuted as religiously aggravated public
order offences; some cases do not pass the threshold tests of
sufficiency of evidence and public interest. As we learned with
racial hatred offences, it is the response of the whole criminal
justice system from the moment an offence is committed, to the
sentencing stage, which needs to be transparent.
It is a mistake to take sections of the process
and try and draw useful conclusions from the information. The
important thing is to be aware of the experience of victims from
investigation to sentence. A good example of this "joined
up" approach was the recent thematic report of the Inspectorates
of Constabulary and the CPS into offences with a racial element.
That report provided qualitative and quantitative data, and concluded
with a number of very helpful recommendations. That kind of approach
is more likely to produce helpful information than data on consents